Australian Institute of Criminology

Skip to content

Introduction

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) commenced in 1987 in response to concerns regarding the number of Aboriginal and Torres Strait Islander people dying in custody. For the purposes of this report, the term Indigenous is used to refer to persons of an Australian Aboriginal and/or Torres Strait Islander background.

Overall, RCIADIC found that Indigenous people were not more likely to die in custody than non-Indigenous people, but were significantly overrepresented in custody compared with their proportion of the total Australian population. This remains true today, with the rate of overrepresentation continuing to increase (ABS 2013).

Among the concerns expressed in the final report of RCIADIC (1991) was the scarcity of reliable statistics on Indigenous contact with the criminal justice system. The Royal Commission recommended that an ongoing program be established to monitor Indigenous and non-Indigenous deaths in prison, police custody and youth detention. In response, NDICP was established at the Australian Institute of Criminology (AIC) in 1992. Since then, NDICP has provided comprehensive data on deaths of all people who, at the time of their death, were:

  • in prison custody, police custody or youth detention; or
  • attempting to escape from prison, police custody or youth detention.

NDICP also records the deaths of all people:

  • whose death was caused, or contributed to, by traumatic injuries sustained, or by lack of proper care, while in such custody or detention; or
  • who died, or were fatally injured in the process of police or prison officers attempting to detain that person (RCIADIC 1991).

Deaths in prison custody have been higher in number than deaths in police custody throughout the period of NDICP and comprise a substantial proportion of total deaths, such that trends in prison custody deaths strongly impact on overall trends for deaths in custody (see Figure 1).

Figure 1 Trends in deaths in custody by custodial authority, 1979–80 to 2012–13 (n)

Note: Prior to 1989–90 deaths in police operations were not recorded

Source: NDICP 1979–2013 [computer file]

Compiling the National Deaths in Custody database

The information held in the NDICP database is based on two main data sources:

  • NDICP data collection forms completed by all state and territory police services and correctional services agencies and sent to the AIC whenever a death occurs (including additional information such as offence records and police narratives); and
  • coronial records, such as transcripts of proceedings and findings, as well as toxicology and post–mortem reports.

NDICP data collection forms allow information to be recorded on approximately 60 variables relating to the circumstances and characteristics of each death. Coronial data are accessed through the National Coroners Information System and are primarily used to confirm the cause and manner of death.

The NDICP database records Indigenous status as advised by Australian custody agencies. While there may be some variations in practice, custody agencies determine Indigenous status through the use of the Standard Indigenous Question developed by the ABS (2014) and used in all of its data collections. The Standard Indigenous Question takes the form ‘are you of Aboriginal or Torres Strait Islander origin?’ with response categories of:

  • No.
  • Yes, Aboriginal.
  • Yes, Torres Strait Islander.
  • Yes, both Aboriginal and Torres Strait Islander.

Definitions

The definitions used to determine whether a case is a death in custody are derived from the recommendations of the RCIADIC and are presented in Box 1. The definition of a death occurring in police custody stems from a 1994 resolution of the then Australasian Police Ministers’ Council. Previously, only deaths occurring in police institutional settings (Category 1a) were reported to NDICP and included in the dataset. The resolution of the Australasian Police Ministers’ Council allowed the definition to be expanded so deaths occurring during police operations (Category 1b and Category 2) could be included and distinguished from those in institutional settings. As a result of retrospective data collection, Category 1a deaths since 1980 are included in NDICP and police operational deaths (Category 1b and Category 2) are included from 1990.

NDICP excludes deaths in immigration detention as administrative detention does not constitute custody within the criminal justice system.

Box 1 Defining deaths in custody

Death in prison custody

Deaths in prison custody include those deaths that occur in prison or youth justice facilities. This also includes the deaths that occur during transfer to or from these custody settings, or in medical facilities following transfer from adult and youth detention centres (RCIADIC 1991).

Death in police custody

Deaths in police custody are divided into two categories:

Category 1

1a Deaths in institutional settings (eg police stations or lock-ups, police vehicles, hospitals, during transfer to or from such institutions, or following transfer from an institution).

1b Other deaths in police operations where officers were in close contact with the deceased. This includes most deaths linked to police raids and shootings by police. However, it would not include most sieges where a perimeter was established around a premise but officers did not have such close contact with the person to be able to significantly influence or control the person’s behaviour.

Category 2

Other deaths during custody-related police operations. This includes most sieges and cases where officers were attempting to detain a person; for example, during a pursuit. This would cover situations where officers did not have such close contact with the person to be able to significantly influence or control the person’s behaviour.

Excluded cases

  • Deaths during police operations, such as search and rescue, evacuations or sieges , where the deceased was not detained or in the process of being detained.
  • Deaths during operations to prevent a suicide, where the purpose was not to detain the deceased due to a breach of the law. If, after the death, it is discovered that the person had committed an offence, these cases may be included in the NDICP database retrospectively.
  • Deaths of persons who were innocent bystanders of a police operation; for example, a pedestrian or passenger who dies as a result of a MVP and who was not a person the police were seeking to detain. If a passenger in the pursued vehicle was involved in the commission of an offence prior to the pursuit commencing, such as an armed robbery or motor vehicle theft, this death would generally fall within the scope of NDICP monitoring.
  • Deaths in immigration detention, as these cases do not involve individuals being held or incarcerated for criminal justice purposes.

Classification of cases

NDICP uses the definition of a death in custody as recommended by RCIADIC as a guide to which cases should be included in the NDICP database. While most of the cases are straightforward and fall within the definition, each year there are some cases where it is unclear whether the death should be classified as a death in custody.

For the purposes of NDICP, a person is considered to be in custody when they are not free to leave the detention or arrest of police or corrections officials. As outlined in Box 1, a death in custody is considered to have occurred in hospitals if injuries or an illness suffered while in custody caused or contributed to that death. In cases where police were clearly in the process of detaining or attempting to detain a person immediately prior to death, such as shootings, sieges, raids and pursuits, the person is considered to have been in custody at the time of death. In all of these cases, the question of inclusion within the scope of the NDICP centres on whether the deceased was in custody, or in the process of being taken into custody, at the time of death.

Standard practice for NDICP is that any borderline cases that have been identified in the present data collection period, which could not be further clarified, have been excluded until full clarification of the case can be obtained, which often occurs via a coronial finding. This exclusion may result in a delay of some years regarding those particular borderline cases, as they may not be heard in their jurisdiction’s coroner’s court for months or years, or a coroner’s findings may be appealed. Despite this drawback, the integrity and reliability of NDICP is improved over the longer term as the coronial decision is a legally binding determination based on all evidence available. It is important to note that this may mean that the total number of deaths may be revised upward in future reports, as borderline cases are not counted for this report until the coronial findings are available and a final determination can be made as to whether they should be counted as a death in custody. Cases that are retrospectively included in the database are identified clearly, with any necessary adjustments to findings made in subsequent reports. Finally, each year, AIC data are cross-checked with the relevant custodial authorities to ensure accuracy. Where information is missing from reports to NDICP, these are checked against coronial findings and necessary revisions made to the dataset.

Indigenous status

When reporting statistics on the deaths of Indigenous persons, it is important to note, as with the criminal justice system more generally, Indigenous status is not always collected and when it is, the recording is not always consistent. Moreover, the way in which Indigenous status is determined varies between jurisdictions. The recording of Indigenous status may be based on a subjective judgement of physical appearance or may rely on self-reporting. As a result, the size of Indigenous involvement in the criminal justice system may be underestimated and this issue should be kept in mind when interpreting the data in this report.

Calculating death rates

Where rates of prison death are presented in this report, they have been calculated using the results of the annual national prisoner census (ABS 2014a). The census counts all prisoners in legal custody in each jurisdiction as at midnight on 30 June. Where trends in rates of death are presented, the rates are only calculated back to 1981–82, as prison census data are not available prior to 1982. Rates of police custody deaths are not presented in this report because there is no reliable data source for:

  • the number of people who are placed into police custody each year; and
  • the number of people who come into contact with police in custody-related operations.

The AIC is developing a police custody monitoring program to be commenced during 2014–15, with a view to providing the baseline police custody data.

Finally, some variables have missing data where there is unknown information or the AIC is awaiting further detail. As a result, there are differences in the number of cases that contribute to the various analyses. Analyses have been conducted for the total number of cases for which the relevant information is available.

Report content

This report presents data on deaths in prison custody and police custody and custody-related operations collated from all jurisdictions for the 2011–12 and 2012–13 financial years, as well as an overview of trends since 1979–80. Report Appendices provide the number of deaths against the variables reported for prison and police custody-related deaths for each year of data collection, including data collected retrospectively after the formation of the NDICP.

There were no deaths in juvenile detention in 2011–12 or 2012–13 and therefore, the total number of deaths in juvenile detention remains at 17 since 1979–80. Due to the small numbers, this report contains no further information on deaths in juvenile detention.

As noted above, for the purposes of NDICP, immigration detention does not constitute custody within the criminal justice system and such deaths are not assessed. However, in the last report from NDICP (Lyneham & Chan 2013) it was noted that the AIC had begun discussions with staff of the Department of Immigration and Border Protection regarding the possibility of undertaking a pilot study into deaths in immigration detention, separate from NDICP. Following departmental restructuring and changes in personnel, the AIC is revisiting options for pursuing such a study and will continue discussions with the department.